Thursday, June 30, 2016

OSHA cited Jay Management Inc. for a General Duty Clause violation after a worker at a convenience store in Irvington, New Jersey, was fatally shot during a robbery


Today’s EHS Daily Advisor Tip:

Workplace Violence: Employer Draws Willful General Duty Clause Citation in Worker’s Shooting Death

by Jennifer Busick



Yesterday we looked at the case of an agency providing care for the developmentally disabled that was cited for a General Duty Clause violation because of ongoing, unresolved workplace violence issues. Such issues are common in many workplaces—but for one New Jersey employer, the Occupational Safety and Health Administration (OSHA) determined that its failure to address the issue amounted to willful neglect of worker safety.

OSHA cited Jay Management Inc. (Jay) for a General Duty Clause violation after a worker at a convenience store in Irvington, New Jersey, was fatally shot during a robbery.

A History of Violence

At the Getty gas station and convenience store on Stuyvesant Avenue in Irvington, security was less than optimal. Between 2010 and 2015, more than 20 incidents of theft, armed robbery, and fights occurred at the store, culminating in the October 26, 2015, shooting death of 57-year-old Ashiwin Patel, a clerk at the store. Following the incident, the local prosecutor’s office offered a $10,000 reward for information leading to an arrest (none has yet been made). OSHA also conducted an investigation, determining not only that Jay had committed a serious violation of the General Duty Clause in failing to protect workers from exposure to violence but also that it had willfully done so.


General Duty Clause citations are rare, in part because a serious hazard must exist in order for a General Duty Clause citation to be issued—OSHA will not issue a General Duty Clause citation for any hazard that is classified as less than serious. In order to be classified as serious, the hazard must be capable of causing an accident or illness that would most likely result in death or serious physical harm—and the employer must know, or be capable of knowing, about the hazard. For example, if the employer had no way to know of the hazard because it was caused by unpreventable employee misconduct, the employer cannot be said to have exposed the worker to the hazard.

But Was It Willful?

Willful General Duty Clause citations are even more rare, because they must meet a higher standard of proof. In order to be classified as willful, OSHA must feel that it can make the case that the employer either knowingly failed to comply with a legal requirement or acted with plain indifference to employee safety. But, given that low-level violence is endemic in so many workplaces, what was it about Jay’s case that put it over OSHA’s threshold for “willful”?


The key seems to have been what Jay did—or, rather, didn’t do—in the wake of Patel’s death. According to OSHA, even though Jay was “well aware” of the location’s violent history, the employer did nothing to implement safety measures—even after Patel’s death.
To fail to protect workers before an incident is foolish; to fail to correct hazards after a worker has died is a clear—willful—demonstration of unconcern.

Commonsense Measures

When it comes to preventing violence, Jay is not the only retail/convenience store employer to fail to take even the simplest commonsense precautions. In a 2015 study, researchers at the National Institute for Occupational Safety and Health (NIOSH) found that convenience store owners in Texas did not put in place some basic workplace violence prevention measures. The most commonly neglected measures, according to the study, were the posting of warning signs about the presence of security cameras and the placement of product displays and signage that obstructed visibility at the front of the store.
According to OSHA, Jay failed to do both those things, as well as failing to:
  • Develop a written workplace violence prevention program;
  • Install panic buttons to ensure rapid law enforcement response;
  • Install physical barriers to separate customers from store associates at the cash register;
  • Train workers in workplace violence prevention and response procedures; and
  • Prohibit working alone.